Section 2
|
Whether Gemcon Ltd. Company is a construction company or manufacturer or
producer.
That it envisages a construction organization but apparently Gemcon Ltd. is
neither engaged in construction nor maintenance of buildings, roads,
highways and bridges. True it is that it manufactures SPC electric poles
which hold electric wires for transporting electricity but such function
would not bring it within the ambit of the word Rather, the manufacture of
SPC electric poles with cement, sand, stone, iron etc brings the company
within the definition of
National Board of Revenue & Ors Vs. Lt. Col. Kazi Shahid Ahmed 20 BLT (AD)
89.
|
National Board of Revenue & Ors Vs. Lt. Col. Kazi Shahid Ahmed |
20 BLT (AD) 89 |
Section 2, 3 (গ), and 5
|
The VAT Act requires the service recipient to pay an amount of 15% VAT on
all services received in Bangladesh on the basis of the value mentioned in
section 5. As per section 3 (গ) of the VAT Act 1991, in case of providing
service, the service providing entity was required to deposit the said
applicable amount of 15% VAT to the government exchequer. Section 5(4) of
the said Act provides that in case of providing service, the VAT will be
charged on the total receivable amount (‘সর্বমোট
প্রাপ্তির উপর’). As such, a conclusion may be
drawn if section 3 (গ) is read along with section 5 (4) together with the
definition of পণ’ (consideration) as given in section 2 (ণ ণ) of
the VAT Act that VAT is always assessed or calculated on the basis of the
total value receivable or received. ...Orascom Telecom Bangladesh Ltd Vs.
BTRC & ors, (Civil), 7 SCOB [2016] HCD 115
....View Full Judgment
|
Orascom Telecom Bangladesh Ltd Vs. BTRC & ors |
7 SCOB [2016] HCD 115 |
Section 2
|
(VAT) Second Schedule of the Act
Section 2 of মূল্য সংযোজন কর আইন, (VAT)
defines the words "manufacturer or "producer"
(প্রস্ততকারক বা উৎপাদক) as doing
doing certain specific acts of production while the second schedule of the
said Act defines the word" নিরমান সংস্থা" doing
some Acts in connection with the manufacture or production. Appellant
Gemcon is neither engaged in construction nor maintenance of buildings,
roads, highways and bridges. Manufacture of SPC electric poles for
transporting electricity docs not bring it neither under the ambit of the
word " যোগযোগ মাধ্যম" and best it brings it within
the definition of "প্রস্ততকারক". In such view of the
matter, the appellant is not entitled to the special financial benefit
available to the manufacturer or producer.
National Board of Revenue and others -Vs- Lt. Col. Kazi Shahid Ahmed
(Retd.) 1 ALR (AD)215
|
National Board of Revenue and others -Vs- Lt. Col. Kazi Shahid Ahmed (Retd.) |
1 ALR (AD) 215 |
Section 3
|
read with Rule-31
Whether the joint-venture firm was not liable to pay any VAT under the
Act.
Held: Zero VAT can only be levied on the services rendered by the
joint-venture firm under the contract in respect of the foreign currency
portion of the contract price.
National Board of Revenue Vs. Hyundai Engineering & Construction Company
Ltd. & Ors. 8BLT(AD) 85
|
National Board of Revenue Vs. Hyundai Engineering & Construction Company Ltd. & Ors. |
8 BLT (AD) 85 |
Section 3 and 5
|
In view of sections 3 & 5 of the VAT Act 1991, the basic scheme of the VAT
Act is that the VAT is calculated at the rate of 15% on the total value
receivable and is always added to the total consideration value instead of
deduction. Under no circumstances; it can be deducted or subtracted from
the total value. In order to comply with the basic scheme of VAT Act and
VAT Rules made thereunder, the BTRC lawfully mentioned the words ‘without
any deduction’ in its memo dated 17 October 2011 – which means that the
demanded money has to be paid by the petitioner to BTRC as it is, and,
while calculating the VAT to be paid at source, the petitioner will have to
add an amount calculating at the rate of 15% of the total demanded amount
as VAT, withhold the same and deposit it in the exchequer directly within
the stipulated time period. ...Orascom Telecom Bangladesh Ltd Vs. BTRC &
ors, (Civil), 7 SCOB [2016] HCD 115
....View Full Judgment
|
Orascom Telecom Bangladesh Ltd Vs. BTRC & ors |
7 SCOB [2016] HCD 115 |
Sections 3(2), 56
|
Value Added Tax Act, 1991
Sections 3(2), 56
Value Added Tax Rules, 1991
Rule 31
Encashment certificate cannot be treated as proceed realization
certificate–– Transactions the respondent-writ petitioners as a local
supplier supplied the construction materials to the local contractors on
receipt of foreign currencies locally as per instructions of the locally
floated tender. The goods were not shipped abroad against master Letter of
Credit or any internationally accepted export documents. Consequently, the
respondents failed to submit any proceed realization certificates against
the claimed ‘deemed export’. Mere encashment certificate cannot be
treated as proceed realization certificate. ––Observation of the High
Court Division:
“We have already indicated that ‘deemed export’ is not an actual
export. There is no L/C nor the goods go out of the country. Therefore, in
case of ‘deemed export’ there cannot be export proceeds realisation
certificate and they would be replaced by encashment certificate and that
has been furnished in the instant case both to the respondents before
filing of the writ petition and also before this Court as annexures.
It, therefore, appears to us that the transactions in question qualifies as
‘deemed export’ and they have fulfilled the requirements of
repatriation of the sale proceeds through Bangladesh Bank.”
The judgment and order dated 17.08.2004 passed by the High Court Division
in Writ Petition No.4132 of 2002 is hereby set-aside. ––The appellants
VAT authority can make demand for the evaded VAT amount and cancel the
rebate illegally availed by the writ-petitioners. .....National Board of
Revenue(NBR) =VS= Rahim Steels Mills Co.(Pvt) Ltd., (Civil), 2023(1) [14 LM
(AD) 539]
....View Full Judgment
|
National Board of Revenue(NBR) =VS= Rahim Steels Mills Co.(Pvt) Ltd. |
14 LM (AD) 539 |
Section 3(3)
|
Section 3(3) of the Act VAT being an indirect tax is to be borne by the
consumer or receiver of the service unless the contract otherwise
provides.
It is true that section 3(3) of the Act places the burden of the tax upon
the service receiver to pay the tax. But the Act does not say that the
service renderer can not pass on the tax burden to service receiver. The
burden of the tax is temporarily fixed on the service renderer for the
facility of tax collection and to prevent tax evasion and is no bar in the
service renderer to re-imburse it form the service receiver, who has to
bear the burden ultimately.
M/S. A.A. Engineering Ltd. -Vs.- University of Khulna 3 ALR(2014)(1)(AD)
139
|
M/S. A.A. Engineering Ltd. -Vs.- University of Khulna |
3 ALR (AD) 139 |
Section 7(1)
|
read with Finance Act, 1999 Section 7(18)
It appears from the record that the petitioner challenged the imposition of
15% supplementary duty and 4% flood surcharge on t he same on the imported
goods as has been fixed by the third schedule under Section 7 of the VAT
Act. It also further appears that Section 7 of the VAT Act as amended has
authorized the Government to impose supplementary duty and there is nothing
on record to show that the imposition of supplementary duty at the rate of
15% as well as the imposition of flood surcharge on the supplementary duty
is not authorized by any law or is otherwise bad in the eye of law. The
imposition of the supplementary duty under the authority of Section 7 of
the VAT Act being an official Act has due sanction of law.
M/S. Madina Trading Corp. Vs. Commissioner of Customs &Anr 17 BLT (AD) 298.
|
M/S. Madina Trading Corp. Vs. Commissioner of Customs &Anr |
17 BLT (AD) 298 |
Section 9
|
Since the admitted allegation against the petitioners is that in spite of
the increase of price of the raw materials as reflected from the concerned
bills of entries and assessment orders thereon, the petitioners did not
make any corresponding increase in the declared price of the finished
products and since such circumstance was not evidently mentioned under any
clauses from Clauses-‘Ka’ to ‘Ta’ under sub-section (1) of Section
9, we do not find as to how the directions of the concerned officers for
readjusting the current account register of the petitioner, or for
depositing certain amount through treasury challan, was amenable to the
alterative remedy of written objection in view of the provisions under
sub-section (2ka) of Section 9. ...City Vegetable Oil Mils Ltd & ors Vs.
Commissioner, CEV & ors, (Civil), 3 SCOB [2015] HCD 108
....View Full Judgment
|
City Vegetable Oil Mils Ltd & ors Vs. Commissioner, CEV & ors |
3 SCOB [2015] HCD 108 |
Section 9
|
Value Added Tax Act, 1991
Section 9 And
Clause-Gha of Rule 22(1) of the VAT Rules, 1991:
Provisions under sub-section (2) of Section 9 provides that if someone
takes rebate in the prohibited circumstances mentioned under sub-section
(1), such rebate can be rejected by the concerned officer, who may also
direct such person to do necessary adjustment in the current account
register, namely Mushak-18, as required to be maintained in view of the
provisions under Clause-Gha of Rule 22(1) of the VAT Rules, 1991. This
sub-section (2) of Section 9 speaks about only for issuance of direction,
not for direct action of adjustment in the current account register.
...City Vegetable Oil Mils Ltd & ors Vs. Commissioner, CEV & ors, (Civil),
3 SCOB [2015] HCD 108
....View Full Judgment
|
City Vegetable Oil Mils Ltd & ors Vs. Commissioner, CEV & ors |
3 SCOB [2015] HCD 108 |
Section 9(2ka)/42
|
The High Court Division observed:
“The present writ petition without preferring any objection/appeal under
section 9(2ka)/42 of the VAT Act is not also maintainable.” We find no
reason to interfere with the impugned judgment of the High Court Division.
…Aftab Automobiles Limited Vs. Super, Customs, Excise and VAT, (Civil), 1
SCOB [2015] AD 24
....View Full Judgment
|
Aftab Automobiles Limited Vs. Superintendent, Customs, Excise and VAT |
1 SCOB [2015] AD 24 |
Section 9(2ka)/42
|
The High Court Division observed–
“The present writ petition without preferring any objection/appeal under
section 9(2ka)/42 of the VAT Act is not also maintainable.” We find no
reason to interfere with the impugned judgment of the High Court Division.
.....Aftab Auto. Ltd =VS= Customs, Excise & VAT, Tejgaon Circle-1, (Civil),
2016-[1 LM (AD) 177]
....View Full Judgment
|
Aftab Auto. Ltd =VS= Customs, Excise & VAT, Tejgaon Circle-1 |
1 LM (AD) 177 |
Section 13(3)
|
A Statute, which takes away or impairs any vested right acquired under
existing law, is always deemed to be prospective. The general rule being
that without a clear indication from the wordings of a statute, the statute
is not to receive retrospective effect.
Govt. of Bangladesh Vs. Apex Weaving & Finishing Mills Ltd. 12 BLT (AD)-77
.
|
Govt. of Bangladesh Vs. Apex Weaving & Finishing Mills Ltd. |
12 BLT (AD) 77 |
Section 13
|
VAT Act, 1991
Section 13
VAT Rules, 1991
Rule 31A, 38
Constitution of Bangladesh, 1972
Article 104
A Statute which takes away or impairs any vested right acquired under
existing law, is always deemed to be prospective. The general rule being
that without a clear indication from the wording of a statute, the statute
is not to receive retrospective effect– On perusal of the concerned
parent act, rules and the aforementioned delegated legislations our
considered view is that the Annexure-E(4)is inconsistent with provisions
spelled out in the parent Act and Rules. At the same time the impugned
explanation is the true and exact expression of what enacted in the parent
Act and Rules. In addition, it is a revenue generating issue of the state.
Public and higher State interest cannot be defeated for the sake of
misleading subordinate legislation and procedural glitches. If these are
the situations, as the highest court of the land, Appellate Division opines
that this Division should invoke its mandate under article 104 of the
Constitution of Bangladesh for doing complete justice for the national
interest.
Considering the vagaries of legal proceedings and the technicalities
involved in adjudication, Art 104 of the Constitution has invested, as a
measure of abundant caution, the last Court of the country with wide power,
so it may forestall a failure of justice and do complete justice in an
appropriate case. It is an extraordinary procedure for doing justice for
completion of or putting an end to a cause or matter pending before this
Court. Appellate Division finds that the impugned judgment and order of the
High Court Division do call for interference. In the result, the Civil
Petition for Leave Appeal is disposed of. Impugned judgment and order of
the High Court Division is set aside without any order as to cost.
.....National Board of Revenue(NBR), Dhaka =VS= BSRM Steels Ltd., (Civil),
2022(2) [13 LM (AD) 246]
....View Full Judgment
|
National Board of Revenue(NBR), Dhaka =VS= BSRM Steels Ltd. |
13 LM (AD) 246 |
Sections 15(4), 6(4KaKa)
|
Value Added Tax Act, 1991
Sections 15(4), 6(4KaKa) r/w
Value Added Tax Rules, 1991
Rule 18(Uma) r/w
The Telegraph Act, 1885
Section 4 r/w
Bangladesh Telecommunication Regulatory Act
Section 55(3) r/w
Regulatory and Licensing Guidelines for Renewal of Cellular Mobile Phone
Operator License (Guidelines, 2011)
The BTRC is given responsibility to collect VAT from the Cellular Mobile
Phone Operators and deposited it to the Government exchequer. As such,
there is no scope to withhold the VAT collected at source by the
Grameenphone.
Government, local authorities, the organization of local authority or
organization those who are working for the Government are exempted from
payment of VAT. The NBR, postal department, Bangladesh Bank, City
Corporation and land revenue authority although engaged in realization of
VAT through deduction at source bearing no registration under VAT Act, 1991
and thus the BTRC being Government organization is also exempted from
payment of VAT under Clause-7 (Ab¨vb¨ †mev)(N) of the second schedule
of the VAT Act, 1991 and compulsory VAT registration is not necessary for
BTRC.
“the BTRC’s contained non-registered status for VAT purposes appears
anomalous in the facts and circumstances. This Court being of the view that
such situation needs immediate attention to avoid any further confusion in
the implementation of the Deduction at Source Scheme in particular. It is
also noted that the BTRC itself on occasion has contributed to such
confusion arising by making ill-advised assertions as to its status within
the VAT regime. This Court finds in this respect that circumstances now
dictate a compulsory registration of the BTRC by application of Section
15(4) of the Act. Both the NBR and the BTRC are hereby put on notice to
ensure such registration by application of Section 15(4) without undue
delay. Given the findings in this judgment it is directed that such
registration shall be deemed to be effective from the date the BTRC
notified the petitioner of award of license and payment of License Renewal
Fee and Spectrum Assignment Fees without any deduction i.e. from
17.10.2011.”
-are hereby expunged. .....Grameenphone Ltd. =VS= Bangladesh
Telecommunication Regulatory Commission, (Civil), 2023(1) [14 LM (AD) 563]
....View Full Judgment
|
Grameenphone Ltd. =VS= Bangladesh Telecommunication Regulatory Commission |
14 LM (AD) 563 |
Section 26(1) and 48
|
We find from the judgement of the High Court Division that upon scrutiny of
section 26(1) and 48 of the VAT Act, 1991 it found that responded No.2 and
Al-haj Taibur Rahman did not have the authority to make any search and
seizure. It was further observed that section 48 of the Act does not
empower the NBR to authorise respondent Nos. 1 and 2 to make such search
and seizure as they are not VAT officers. Hence, the report dated
28.03.2002 emanating from such illegal search and seizure prepared and
issued by respondent No.2 are illegal, without jurisdiction and coram non
judice.
We are of the view that the High Court Division was correct in holding that
neither respondent No.2 nor the said Al-haj Md. Taibur Rahman were
authorised under section 26 or section 48 of the Act to enter the premises
of the respondent company for the purpose of search and seizure. ...Customs
Intelligence and Investigation,Dhaka =VS= Opsonin Chemical Industries Ltd.,
(Civil), 2021(1) [10 LM (AD) 270]
....View Full Judgment
|
Customs Intelligence and Investigation,Dhaka =VS= Opsonin Chemical Industries Ltd. |
10 LM (AD) 270 |
Section 26(1) and 48
|
Section 26(1) of the Act permits any VAT officer authorised by the
Commissioner or Divisional Officer to conduct search and seizure upon
serving notice. The proviso to the said section permits the Commissioner or
Divisional Officer, upon giving reasons, to authorize any VAT Officer not
below the rank of Superintendent to carry out search and seizure without
giving notice. In the facts of the instant case we note that writ
respondent No.2, who conducted the search and seizure was a Joint Director
of Customs Intelligence and Investigation and not a VAT Officer. We further
note that Md. Taibur Rahman, who headed another team and conducted search
and seizure of the appellant company, was a Superintendent of Customs
Excise and VAT.
Clearly section 48 of the Act provides that NBR can direct search and
seizure to be conducted by a VAT Officer not below the rank of Assistant
Commissioner to carry out search and seizure. ...Customs Intelligence and
Investigation,Dhaka =VS= Opsonin Chemical Industries Ltd., (Civil), 2021(1)
[10 LM (AD) 270]
....View Full Judgment
|
Customs Intelligence and Investigation,Dhaka =VS= Opsonin Chemical Industries Ltd. |
10 LM (AD) 270 |
Section 26A
|
The Comptroller and Auditor-General has power to examine the records of the
importers and other business houses despite payment of duties and VAT––
Appellate Division modify the operating part of the judgment of the High
Court Division to the extent that if the audit department finds
irregularities in the assessment of VAT and other duties, it shall ask the
Board of Revenue to supply the relevant documents of the VAT payers and the
Board of Revenue shall hand over the documents to the audit department. The
assessees are not under obligation to furnish or submit documents directly
to the Comptroller and Auditor-General. The documents shall be furnished
through the Board of Revenue. The accounts department cannot ask any
business organizations or persons to submit documents for the purpose of
accounting for ascertaining as to whether they paid VAT in accordance with
law. .....National Board of Revenue, Bangladesh =VS= Otobi Limited,
(Civil), 2023(1) [14 LM (AD) 395]
....View Full Judgment
|
National Board of Revenue, Bangladesh =VS= Otobi Limited |
14 LM (AD) 395 |
Section 37 & 55
|
A notice under section 37 of the VAT Act cannot be issued without first
determining the amount of evaded VAT if any. In doing so the authority have
to issue notice under section 55(1) of the VAT Act 1991, claiming the
evaded VAT and after giving an opportunity of hearing to the party concern,
determine the amount of evaded VAT, under section 55(3) of the VAT Act
1991. After such determination of evaded VAT if the defaulter fails to
repay the evaded VAT, only then, can proceed under section 37 along with
other provisions of the VAT Act. ...Shuvash Chandra Das Vs. Customs, Excise
& VAT App. Tribunal & ors, (Civil), 4 SCOB [2015] HCD 171
....View Full Judgment
|
Shuvash Chandra Das Vs. Customs, Excise & VAT App. Tribunal & ors |
4 SCOB [2015] HCD 171 |
Sections 37, 42 and 55
|
VAT Act, 1991
Sections 37, 42 and 55
Customs Act, 1969
Sections 193, 194, 196, 196A, 196B, 196C
In order to file an appeal under section 42 of the VAT Act the percentage
of the demanded VAT and or the penalty as mentioned therein must be
deposited at the time of filing the appeal and in absence of such deposit
an appeal cannot be accepted–– 18 MLR AD 356 wherein this Division had
reiterated: “The question involved in these two leave petitions squarely
came up for consideration by this Division in Civil Petition for Leave to
Appeal No. 896 of 2009 and in that case after considering the provisions of
sections 37, 42 and 55 of the VAT Act, 1991 and sections 193, 194, 196,
196A, 196B, 196C of the Customs Act, 1969 this Division held that
"Therefore, the intention of the legislature is very clear that in order to
file an appeal under section 42 of the VAT Act the percentage of the
demanded VAT and or the penalty as mentioned therein must be deposited at
the time of filing the appeal and in absence of such deposit an appeal
cannot be accepted. So, no illegality was committed either by the
Commissioner (Appeal) in not accepting the appeal or by the Appellate
Tribunal in directing the petitioner to deposit the demanded VAT as per the
VAT Act and deposit the treasury chalan of such deposit by 18.04.2007" and
on the above view the judgment and order passed by the High Court Division
was affirmed and the leave petition was dismissed. We find no reason to
take a different view from the view taken in the said leave petition and
therefore, we find no merit in the leave petitions. Accordingly, both leave
petitions are dismissed.”
Further in the case of JMS Glass Industries Ltd. Vs. Customs, Excise and
VAT Appellate Tribunal 64 DLR AD 43 it was also held that the provisions of
Section 194 of the Custom Act, 1969 cannot be attracted or applied for the
purpose of waiving/dispensing with the statutory deposit as provided in
sub-section (2) of section 42 of the VAT Act, it being an independent
statue.
It is clear that the Tribunal shall only follow the procedure of the Custom
Act only when the appeal presented to it with the required deposit under
the VAT Act and with all the trappings of the custom Act as far as it is
applicable. After filing of the appeal, it does not contemplate prevailing
procedure of the appeal. That is to say requirement before filing to be
construed as it is. .....Customs Excise and VAT, Ctg. =VS= Abul Khair Steel
Mills Ltd., (Civil), 2023(2) [15 LM (AD) 627]
....View Full Judgment
|
Customs Excise and VAT, Ctg. =VS= Abul Khair Steel Mills Ltd. |
15 LM (AD) 627 |
Sections 37, 55(1) and 55(3)
|
Show Cause Notice– A well settle principle of law that where there
existed statutory appellate provision, a writ petition would not normally
be maintainable until appellate forum was exhausted. That point of view the
High Court Division was right to say that the matter should be resolved by
the respondent first, where it would be open to the petitioner to raise all
the factual and legal issues, mentioned in the writ petitions. Facts and
issues being same in both the petitions, they are accordingly, dismissed.
Pointed out, the respondents can not lodge such case before the matter is
fully and finally resolved after hearing the petitioner. How can the
respondents file such a case before taking a final decision on the
questions raised through the “Show Cause Notice” after hearing the
petitioner. The respondents must shun such practices. ...Wata Chemical Ltd.
=VS= Customs, Excise and VAT Commissionerate, Dhaka, (Civil), 2021(2) [11
LM (AD) 95]
....View Full Judgment
|
Wata Chemical Ltd. =VS= Customs, Excise and VAT Commissionerate, Dhaka |
11 LM (AD) 95 |
Section 42
|
The Customs Act, 1969
Section 196 r/w
The VAT Act, 1991
Section 42
Admittedly an alternative remedy in the form of appeal was available to the
writ petitioner– In violation of Section 31 of the Act passed the
impugned order dated 01.08.2006 directing the Company to pay an amount of
Tk. 2,53,36,161/- as evaded / unpaid VAT and Tk. 3,00,00,000/- as fine i.e.
a total amount of Tk. 5,53,36,169/- only under section 37(2) of the Act.
Hence, was the writ petition. The Customs and VAT authority has
jurisdiction to consider the computer print-out of the monthly statements
of sale obtained from the office computer of the Company duly singed by the
Deputy Managing Director of the Company as information/evidence for
deciding VAT. The Mushak chalans were also placed before the Customs
Authority. It was also found that admittedly an alternative remedy in the
form of appeal was available to the writ petitioner under Section 196 of
the Customs Act read with Section 42 of the VAT Act before the Appellate
Tribunal which the writ petitioner did not avail of. Could not place before
us any new ground or discover any new evidence for review of our earlier
decision. The review petition is dismissed. .....Sagar Chemical & Paint
Industries Ltd. =VS= Bangladesh, [4 LM (AD) 325]
....View Full Judgment
|
Sagar Chemical & Paint Industries Ltd. =VS= Bangladesh |
4 LM (AD) 325 |
Section 42(1) (Ka), 42(2) (Ka)
|
The VAT Act
Section 42(1) (Ka), 42(2) (Ka) r/w
The Constitution of Bangladesh
Article 102
Any person aggrieved by the decision or order passed by the Commissioner,
Additional Commissioner or any VAT Official lower in the rank of the
Commissioner or Additional Commissioner can prefer appeal to the forum
prescribed in the section. In the instant case the writ-petitioner impugned
adjudication order dated 15.08.2007 passed by the writ-respondent no.2
Assistant Commissioner, Customs, Excise and VAT Division, Kushtia which is
an appealable order under section 42(1)(Ka) of the VAT Act and section
42(2)(Ka) mandates that 10% of the demanded VAT is to be deposited at the
time of filing of the appeal. When there is a statutory provision to avail
the forum of appeal against an adjudication order passed by the concern VAT
Official then the judicial review under Article 102(2) of the constitution
bypassing the appellate forum created under the law is not maintainable.
…Commissioner, Customs, Excise and VAT Com. & ors. Vs. Perfect Tobacco
Co. Ltd, (Civil), 16 SCOB [2022] AD 84
....View Full Judgment
|
Commissioner, Customs, Excise and VAT Com. & ors. Vs. Perfect Tobacco Co. Ltd |
16 SCOB [2022] AD 84 |
Sections 42 (2)(Kha)
|
The Value Added Tax Act, 1991
Sections 42 (2)(Kha)
Customs Act, 1969
Section 196
Constitution of Bangladesh, 1972
Article 102
Non-payment of deposit of 50% of the demand as a precondition for admission
of appeal–– Law clearly has made provision for depositing 50% of the
demanded amount at the time of filing appeal before the VAT Appellate
Tribunal, which is condition precedent. The High Court Division has given
gracious relief to the writ petitioner ignoring the proposition of law that
the Court should not give benevolent construction of a statue when the
provision is plain, unambiguous and does not give rise to any doubt as to
its meaning. [Reference: Shyam Sundar and others vs Ram Kumar and another
AIR, 2001 (SC) 2472].
When the intention of the legislature is clear, no consideration of
expediency or possibility of abuse can be allowed to deviate from the
natural consequences following the correct interpretation. Thus, the Court
has no jurisdiction to exercise its discretion beyond the scope of law.
Appellate Division is of an opinion that the High Court Division committed
error of law in passing the impugned judgment and order. .....Customs,
Excise & Vat Appellate Tribunal =VS= Chattala Industries Ltd., (Civil),
2023(1) [14 LM (AD) 623]
....View Full Judgment
|
Customs, Excise & Vat Appellate Tribunal =VS= Chattala Industries Ltd. |
14 LM (AD) 623 |
Sections 42 (2)
|
Value Added Tax Act, 1991
Sections 42 (2)
Customs Act, 1969
Section 196
Finance Act, 1996
Finance Act, 1996 the Legislature has again amended section 42 (2) of the
VAT Act inserting a mandatory provision of depositing 50% of the penalty or
claimed amount at the time of filing the appeal before the Appellate
Tribunal. .....Customs, Excise & Vat Appellate Tribunal =VS= Chattala
Industries Ltd., (Civil), 2023(1) [14 LM (AD) 623]
....View Full Judgment
|
Customs, Excise & Vat Appellate Tribunal =VS= Chattala Industries Ltd. |
14 LM (AD) 623 |
Section 42(1)(Ka) & sec. 42(2)(Ka)
|
The Value Added Tax Act (VAT Act)
Section 42(1)(Ka) and sec. 42(2)(Ka)
The Limitation Act, 1908
Section 14
Our Apex Court in the case of TaeHung Packaging (BD) Limited and others Vs.
Bangladesh and others, reported in 18 BLC (AD) (2013) 144, held: “The
consistent views of this Division are that if any alternative remedy is
available, the judicial review by the High Court Division in writ
jurisdiction is not available with the exception that where the vires of a
statutory provision is challenged or where the alternative remedy is not
efficacious exercise of such power may be justified.” In the case of
Champalal Binani Vs. the Commissioner of Income Tax, West Bengal & others,
reported in AIR 1970(SC)645, the Indian Supreme Court observed that:
“Where the aggrieved party has an alternative remedy the High Court would
be slow to entertain a petition challenging an order of a taxing authority
which is exfacie with jurisdiction. A petition for a writ of certiorari may
lie to the High Court, where the order is on the face of it erroneous or
raises question of jurisdiction or of infringement of fundamental rights of
the petition.”
The respondent can still avail the statutory forum of appeal under section
42 of the VAT Act taking recourse of section 14 of the Limitation Act.
Since we are already held that the writ petition is not maintainable as
such refrained from going into merit of the case. Judgment and order dated
05.05.2016 passed by the High Court Division in Writ Petition No.1649 of
2012 is set aside. .....Customs, Excise and VAT Commissionerate =VS= M/S.
Perfect Tobacco Company Ltd. , (Civil), 2022(1) [12 LM (AD) 271]
....View Full Judgment
|
Customs, Excise and VAT Commissionerate =VS= M/S. Perfect Tobacco Company Ltd. |
12 LM (AD) 271 |
Section 42(4), 55(1)
|
Value Added Tax Act, 1991 (VAT Act)
Section 42(4), 55(1)
The Constitution of Bangladesh, 1972
Article 102(2)
Statutory forum provided in the statute which was competent to decide all
questions of fact and law– From the demand cum show cause notice it is
apparent that an adjudication process was initiated and the respondents
sought time in writing to reply and thus the process awaiting adjudication.
Against the adjudication order, forum of appeal is prescribed in the VAT
Act. At this juncture, the writ petitions filed by the respondents as
petitioners are not maintainable. The High Court Division lost sight of the
pending adjudication process as such the impugned judgment and orders are
not tenable in law. Article 102(2) of the Constitution provides that the
High Court Division may give direction or orders under the Article where
there is no other equally efficacious remedy provided by law. In view of
the timeframe prescribed in section 42(4) of the VAT Act it cannot be said
that the remedy under section 42 of the Act is not efficacious. Though the
respondents had adequate remedy under the VAT Act which they could avail of
but the respondents did not avail the statutory forum provided in the
statute which was competent to decide all questions of fact and law.
.....Ministry of Finance, Bangladesh =VS= Pragati Insurance Ltd., (Civil),
2022(1) [12 LM (AD) 309]
....View Full Judgment
|
Ministry of Finance, Bangladesh =VS= Pragati Insurance Ltd. |
12 LM (AD) 309 |
Section 42(1)(kha) and 42 (2) (Kha)
|
Deposit of 25% of demanded VAT or penalty imposed at the time of filing an
appeal.
Customs Act,1969(IV of 1969)
Sections 194(1) and 196
It is well - established that all fiscal statutes which deal with taxation
contain provisions which are called charging section and others are termed
machinery sections. Once the imposition or levy has been incurred, the
machinery sections are to be construed and interpreted in a manner which
would not defeat a tax. In the instant case, under section 42(1)(kha) of
the VAT Act, 1991 the appeal was required to be filed before the Appellate
Tribunal construed under section 196 of the Customs Act, 1969 with deposit
of 25% of the demanded VAT.
Sunshine Cables and Rubber Works Ltd. -Vs.- NBR 3 ALR(2014)(1)(AD) 177
|
Sunshine Cables and Rubber Works Ltd. -Vs.- NBR |
3 ALR (AD) 177 |
Section 55
|
The VAT Act, 1991
Section 55
Constitution of Bangladesh, 1972
Article 102(2)
When the entire action of the VAT authority appears to be illegal, mala
fide and arbitrary on the face of the record, invoking article 102 of the
Constitution, under such circumstances, without preferring statutory
appeal, is no bar. Thus we are view that the High Court Division correctly
held that the writ petition was maintainable and accordingly disposed of
the matter. But the disposal in respect of asking the appellant to pay VAT
and supplementary duty for the period from February, 2012-2013 to October,
2013-2014 is not in accordance with law.
Thus it is clear that since there is violation of law and fundamental right
of a citizen in charging VAT and supplementary duty (SD) giving
retrospective effect beyond the provision of law and since there is
violation in demanding such duty/tax it cannot be said that the writ
petition was not maintainable. These two civil appeals are allowed without
any order as to costs. ...British American Tobacco Bangladesh Company Ltd.
=VS= NBR, (Civil), 2021(1) [10 LM (AD) 257]
....View Full Judgment
|
British American Tobacco Bangladesh Company Ltd. =VS= NBR |
10 LM (AD) 257 |
Section 55(1)
|
No provision of the said Act of 1991 empowers the VAT authority to direct
the petitioner as a VAT registered person to deliver any documents or
records directly to any third party authority, i.e. Local and Revenue Audit
Directorate. Neither a notice can be issued either directing and deposit of
revenue or under section 55(1) of VAT Act on that Count. ...Singer BD Ltd &
ors Vs. NBR & others, (Civil), 2 SCOB [2015] HCD 84
Thus the authority in which a discretion is vested can be compelled to
exercise that discretion, but not to exercise it in any particular manner.
In general, a discretion must be exercised only by the authority to which
it is committed. The authority must genuinely address itself to the matter
before it: it must not act under the dictation of another body or disable
itself from exercising a discretion in each individual case. In the
purported exercise of its discretion it must not do what it has been
forbidden to do, nor must it do what it has not been authorized to do.
...Singer BD Ltd & ors Vs. NBR & others, (Civil), 2 SCOB [2015] HCD 84
....View Full Judgment
|
Singer BD Ltd & ors Vs. NBR & others |
2 SCOB [2015] HCD 84 |
Section 55 and 56
|
Section 56 cannot be construed or interpreted in an isolated manner.
Section 55 and 56 must be read together and from a perusal of the same, it
is evident that Section 56 is mandatorily preceded by Section 55 of the VAT
Act, 1991 which prescribes the issuance of a Show- Cause Notice followed by
other procedures and which is exhaustively laid out in the whole Section.
The prescription said out in Section 55(1) (2)(3) are mandatory and no
action or initiative can be taken or resorted to for realization of any
unpaid, less paid or otherwise evaded etc amount, whatsoever under the
provisions of Section 56 of the VAT Act, 1991, unless and until firstly the
procedure laid out in Section 55 of the VAT Act has been exhausted by the
authorities concerned. The principle of law is that Section 56
automatically presupposes a notice under section 55(1) of the Act, followed
by the procedure laid out in Sub-section 2 & 3 of the said section 55 and
which the respondents cannot avoid under any circumstances. ...Md. Sarowar
Alamgir Vs. Bangladesh & Ors, (Civil), 3 SCOB [2015] HCD 137
....View Full Judgment
|
Md. Sarowar Alamgir Vs. Bangladesh & Ors |
3 SCOB [2015] HCD 137 |
Sections 55 and 67
|
Value Added Tax Act, 1991
Sections 55 and 67
Value Added Tax Rules, 1991
Rule 12 —After submission of the Bank Guarantee supported by an
unconditional undertaking by all the directors of the petitioner company
against the outstanding VAT liability, the claim for release of the Bank
Guarantee is not tenable in law.
The Appellate Division held that it appears that the predecessor of the
petitioner company did not raise any objection against the outstanding
arrear VAT liability demanded by the respondent authority as contained in
Annexure-E1 on the ground of non-compliance of procedure of the VAT Act
before making the demand. In the circumstances of the case after submission
of the Bank Guarantee No. 101TS1241LG07 dated 07.05.2007 for Tk.
2,75,42,815.02 supported by an unconditional undertaking by all the
directors of the petitioner company against the outstanding VAT liability
of Tk. 2,75,42,815.02 the claim for release of the Bank Guarantee is not
tenable in law. However, the petitioner company can claim refund of any
mistaken payment or excessive payment in respect of VAT turn-over tax or
any other dues if any to the respondent authority as envisaged in Section
67 of the VAT Act.
Nuvista Pharma Limited -Vs.- The Chairman, National Board of Revenue and
others (Civil) 12 ALR (AD) 49-54
|
Nuvista Pharma Limited -Vs.- The Chairman, National Board of Revenue and others |
12 ALR (AD) 49 |
Order of adjudicating authority is appealable—
|
Order of adjudicating authority is appealable —
Writ Petition does not lie without exhausting the remedy of appeal
Since the adjudicating order passed by the Commissioner of Excise, Customs
and VAT is an appealable order, the Writ Petition filed without exhausting
the remedy of appeal is not maintainable. Messers Chemico Laboratories Ltd.
represented by its Chairman -Vs. Government of Bangladesh represented by
the Secretan/ Ministn/ of Finance and others 11 MLR (2006) (AD) 192.
|
Messers Chemico Laboratories Ltd. represented by its Chairman -Vs. Government of Bangladesh represented by the Secretan/ Ministn/ of Finance and others |
11 MLR (AD) 192 |